Punjab-Haryana High Court
Satyawan And Ors. vs Raghbir on 20 March, 2002
Equivalent citations: AIR2002P&H290, AIR 2002 PUNJAB AND HARYANA 290, 2002 HRR 478, (2002) 2 CIVILCOURTC 381, (2002) 3 LANDLR 505, (2002) 2 PUN LR 467, (2002) 2 RECCIVR 669, (2002) 3 ICC 112
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. This regular second appeal is directed against the judgment and decree dated 16.4.1999 of the Additional District Judge, Panipat affirming that of the Civil Judge (Junior Division) Panipat dated 17.9.1997, whereby the (Civil Judge, Junior Division) had dismissed the plaintiffs' (appellants' herein) suit for declaration.
2. Facts:-
Plaintiffs Satawan, Mohinder Singh and Ishwar Singh sons of Bir Singh filed suit for declaration against Raghbir Singh son of Desa son of Chandu to the effect that they are owners of land measuring 44 kanals 11 marlas detailed in para A of the head-note of the plaint, situated in the area of village Kurana, Tehsil Israna, District Panipat, shown in the Jamabandi for the year 1987-88 and mutation Nos.5040, 5142 and defendant Raghbir Singh is the owner of land as detailed in para B of the head-note of the plaint, situated in the area of Village Kurana, District Panipat shown in the jamabandi for the year 1987-88 and mutation No.5247 and the judgment and decree dated 20.10.1992 passed in Civil Suit No.959 of 1992 by Shri S.S. Lamba, Senior Sub Judge, Panipat is illegal, null and void and was not binding on the plaintiffs and the same was based on fraud and mis-representation and was liable to be set aside, with consequent relief of permanent injunction restraining the defendant from interfering in the peaceful possession of the plaintiffs over the land detailed in para B of the head-note of the plaint and from alienating the land in suit detailed in the head-note of the plaint by way of sale, mortgage, gift and also for possession of the land detailed in para A of me head-note of the plaint. It was alleged in the plaint that plaintiffs were owners in possession of the land detailed in para A of the head-note of the plaint and the defendant was owner in possession of the land detailed in para B of the head-note of the plaint. Defendant approached the plaintiffs and requested them to exchange their land with his land detailed in the head-note of the plaint in para B representing that it was free from all encumbrances. Plaintiffs are simpleton and they accepted the request of the defendant. Defendant filed Civil Suit No.959 of 1992 against them on 20.10.1992. Defendant brought Satyawan and Ishwar Singh plaintiffs and kept them seated in a corner of the Courtroom by giving them some liquor. After some time, the defendant produced Satyawan and Ishwar Singh in the Court of Shri S.S. Lamba, Senior Sub Judge, Panipat and the defendant had directed them (Satyawan and Ishwar Singh) to say "yes" before the Court. Satyawan and Ishwar Singh did as they had been directed by Raghbir Singh defendant to do. Contents of the plaint were not read over to Satyawan and Ishwar Singh. Things fizzled out when the plaintiffs (Satyawan, Mohinder Singh and Ishwar Singh) contacted Patwari Halqa to get the mutation recorded in their names in respect of the land detailed in para B of the head-note of the plaint situated within the area of village Kurana and the Patwari Halqa told them that the situation of the land detailed in para B of the head-note of the plaint was shown to be of village Israna, District Panipat, whereas it should have been shown to be of village Kurana. The Patwari Halqa also told them that there was also loan outstanding against the land shown in para B of the head-note of the plaint due to the Oriental Bank of Commerce Branch Hat, and the land was mortgaged with the said bank. After the plaintiffs came to know of this fact they approached the defendant and re-
quested him to get the decree amended and also to get the land detailed in para B of the head-note of the plaint redeemed by making the repayment of the loan amount but the defendant refused to do so. Defendant further threatened that he had played fraud upon them knowingly and he had the right to alienate the entire land detailed in the head-note of the plaint and would also dispossess them from the land detailed in para B of the head-note of the plaint. The judgment and decree dated 20.10.1992 passed in Civil Suit No.959 of 1992 was, thus, illegal, void and not binding upon them and was the result of fraud and misrepresentation and was liable to be set aside, on the grounds that the land detailed in para B of the head-note of the plaint is far away from the village and is of inferior quality than the land detailed in Item A of the head-note of the plaint and the value of the land as detailed in para A of the plaint was higher and the value of the land detailed in para B of the plaint was very low. Defendant also pleaded that before exchange, his land was free from all encumbrances whereas the same was found mortgaged with Oriental Bank of Commerce, Hat. The contents of the plaint of suit No.959 of 1992 were not read over to them. Fraud played by the defendant was clear inasmuch as Mohinder Singh (plaintiff No.2) was neither summoned nor did he appear and no written statement was filed by him, nor any counsel was engaged. Defendant Raghbir Singh produced some other person vice the plaintiffs in the Court of Shri S.S. Lamba, Senior Sub Judge, Panipat. Criminal Complaint was also filed in this regard under Sections 468, 467, 419, 420 etc. of the Indian Penal Code in the Court of Chief Judicial Magistrate, Panipat. Decree was passed against the provisions of law and the provisions of the Indian Registration Act. There was no pre-existing right in favour of Raghbir Singh defendant and, as such, decree was null and void in itself. Raghbir Singh knowingly and intentionally showed the land detailed in para B of the head-note of the plaint to be situated in village Israna instead of village Kurana, Tehsil Israna with an intention to cause harm to the plaintiffs Satyawan, Mohinder Singh and Ishwar Singh.
3. Defendant Raghbir Singh contested the suit of the plaintiffs urging that it was rather Satyawan etc. plaintiffs who had approached him for exchange of their land with his land. It was denied that he had pleaded that his land was free from all encumbrances. In fact, there was a loan of Rs. 1,10,000/- on the land which was given to them in the said exchange and an entry 'in this regard was also available in the jamabandi which was obtained by the parties at the relevant time. Nothing was concealed. It was denied that the plaintiffs are simpleton, rather the defendant is illiterate and simpleton. Plaintiffs are educated persons. In fact, the oral exchange between the parties to the suit took place somewhere in June, 1992.On the contrary when the plaintiffs, tried to resile from that exchange and fifed suit for declaration and when the plaintiffs were convinced that in the said suit filed by the defendant they (plaintiffs) have no legs to stand upon, they of their own accord came to Court, engaged a counsel and filed the written statement admitting the claim of the defendant and suffered a decree by also making a statement in the Court. It was denied that the plaintiffs Satyawan and Ishwar Singh were seated in one corner of the Court by giving them some liquor. It was also denied that after some time, the defendant produced Satyawan and Ishwar Singh before Shri S.S. Lamba, Senior Sub Judge, Panipat. It was also denied that the defendant directed Satyawan and Ishwar Singh to say "yes" before the Court. Satyawan, Mohinder Singh and Ishwar Singh made statement of their own accord in that suit along with their counsel. It was denied that they did so as they had been directed to do so by the defendant. It was denied that defendant is the owner of land detailed in para B of the head-note of the plaint. It was denied that the plaintiffs are owners of the land detailed in para A of the head-note of the plaint. In fact, defendant is the owner of the land detailed in para A of the plaint and he had spent huge amount on installing tube-well in the said land and had made other improvements. He has already paid the entire loan amount of the bank in respect of the land B which was given by him to the plaintiffs and a clearance certificate had already been issued by the Bank. Decree dated 20.10.1992 passed in Civil Suit No.959 of 1992, was neither illegal nor void. The said decree is binding on all concerned. It was denied that the said decree was the result of fraud and misrepresentation. It was denied that the land detailed in para B of the head-note of the plaint is far away from the village and is of inferior quality. In fact, the land given by the defendant to them was of much better quality being irrigated by canal. On the contrary, the land given to the defendant by the plaintiffs was of inferior quality. Defendant agreed to the exchange on account of the fact that along the land which was given to him in exchange, there was some other land in possession of the defendant which though was recorded as owned by the gram Panchayat but, in fact, the defendant was owner thereof. Another consideration for the defendant for taking inferior quality land of the plaintiffs was that the land of his brotherhood was all around the said land and the defendant wanted to come near to his brotherhood. After improvements, the plaintiffs have become dishonest and they were trying to get back the land.
4. On the pleadings of the parties, the following issues were framed by the trial Court:-
1. Whether the decree dated 20.10.1992 in civil suit No.959 of 1992 is wrong and illegal, null and void and act of fraud, misrepresentation and the same is not binding upon the rights of plaintiffs as alleged, OPP
2. Whether the decree in question is against the provisions of Indian Registration and Stamps Act and not regarding the pre-existing rights of the parties to the suit regarding the suit land? OPP.
3. Whether the suit is not maintainable in the present form? OPD.
4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD.
5. Whether the plaintiffs are estopped from filing the present suit on their own act and conduct? OPD
6. Whether the plaintiffs appeared and filed their written statement in civil suit No.959/92 voluntarily and it was not a misrepresentation of plaintiff No.2 Mohinder Singh? OPD.
7. Relief.
5. Vide order dated 17.9.1997 the Civil Judge (Junior Division) dismissed the plaintiffs suit by holding that plaintiffs Satyawan, Mohinder and Ishwar Singh had exchanged their land with the defendant which was a valid exchange. There was no fraud or misrepresentation played by the defendant upon them. It was found that they suffered the decree of their own accord. It was found that the said decree did not require any registration.
6. Plaintiffs went in appeal which was dismissed by the Additional District Judge, Panipat. Both the Courts below have concurrently found that there was no fraud or misrepresentation alleged to have been played by the defendant upon the plaintiffs in the obtaining of the decree dated 20.10.1992. This finding of fact has been arrived at concurrently by the two Courts below on consideration of evidence. This finding of fact cannot be interfered with in second appeal when the same is based on appreciation of evidence which appreciation of evidence was just, based on reasons and justice.
7. In this appeal, the learned counsel for the appellants has concentrated on addressing this Court on a question of law namely, "whether exchange of immovable property worth Rs.100/- or more than Rs.100/- can be brought about when there was no registered instrument evidencing that exchange and further if that transaction of exchange has been recognized by the Court and the Court has passed a decree recognishing that exchange whether that decree will require registration so as to be effective and enforceable." It was submitted by the learned counsel for the appellants that the transaction of exchange concerning immovable property worth Rs.100/- or more than Rs.100/- requires registration and if transaction of exchange concerning immovable property worth Rs.100/- or more than Rs.100/- is brought about otherwise than through registered instrument, it cannot effect that immovable property at all. In support of this submission, he drew my attention to Raghunath and Ors. v. Kedar Nath, 1969(1) S.C.C. 497, wherein it was held (1) that the document in question was required to be registered under section 54 of the Transfer of Property Act and in the absence of such a registration, it cannot be received in any transaction affecting the property in view of Section 49 of the Registration Act. (2) It was previously supposed that Section 4 of the Transfer of Property Act was merely to add to the list of documents of which the registration was compulsory and not to include them in Section 17 so as to bring them within the scope of Section 49 of the Registration Act. Sohan Lal v. Mohan Lal, I.L.R. 50 Allahabad 986; Ram Sahu v. Gowo Ratho, I.L.R. (1921) 44 Madras 55 and Dawal v. Dharma, I.L.R. (1913) 41 Bombay 550 referred. These decisions have been superseded by Act No. 21 of 1929, which by inserting in Section 49 of the Registration Act the words "or by any provision of the Transfer of Property Act, 1882," has made it clear that the documents of which registration is necessary under the' Transfer of Property Act but not under the Registration Act falls within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction affecting any immovable property comprised therein, and do not affect any such immovable property". It was submitted that exchange is also a transfer of property in terms of Section 54 of the Transfer of Property Act. If it is a transfer of property in terms of Section 54 of the Transfer of Property Act, such transfer will require registration. In support of this submission that in exchange there is a transfer of property and such transfer of property will require registration as if it were sale. He drew my attention to Ram Kristo Mandal and Anr. v. Dhankisto Mandal AIR 1969 S.C. 204, wherein it was observed as follows: "Though Section 27 of the Regulation does not in express terms mention an exchange, a transaction of exchange is not beyond the scope of that section. A transfer of property in completion of an exchange as contemplated by Section 118 of the T.P. Act can be made only in the manner provided for the transfer of such property by sale. It is not, therefore, right to say that an exchange does not involve transfer of property and, therefore, does not fall within the scope of Section 27. The language of Section 27(1) is comprehensive enough to include any agreement or contract of exchange."
8. In Inderjit and Ors. v. The Financial Commissioner and Ors., 1967 P.L.J. 233 it was held that section 49 of the Indian Registration Act provides that no document required by section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall affect any immovable property comprised therein unless it has been registered. There is a proviso, inter alia to the effect that unregistered document affecting immovable property above Rs.100/- cannot pass by an oral sale or mere admission when the statute requires the execution of a deed. In Shakuntala Yadav and Ors. v. Yadvinder Singh and Ors., 1998(2) P.L.J. 547 it was held that if this was to be a case of exchange, which it was, it could be only done by a registered deed. Resort to a Court decree has resulted in violation of law of registration and being opposed to law is hit by section 23 of the Indian Contract Act." In Sardari Lal and Ors. v. Smt. Shakuntla Devi, (1961)63 P.L.R. 362 it was held that the title by sale cannot pass to the vendee in the absence of the execution and registration of the deed of sale. If Section 54 of the Transfer of Property Act is held applicable, there is no scope for importing the equitable doctrine of English law "that a contract for sale of real property makes the purchaser the owner in equity of the estate."
9. Section 118 of the Transfer of Property Act where exchange has been defined, reads as follows:
"When two persons mutually transfer the ownership of one thing for the ownership of another neither thing nor both things being money only, the transaction is called 'exchange', A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale."
10. In view of the observations of the Hon'ble Supreme Court made in Ram Kristo Mandal's case (supra) it has to be viewed transaction of exchange as transaction of sale, If sale of immovable property worth Rs.100/- or more than Rs.100/- takes place, it will require registration. Exchange of immovable property will also require registration. In Gurdial Singh v. Ajmer Singh and Ors. 1987 P.L.J. 124 it was held that if exchange deed has been written it was compulsorily registrable, the subject matter of exchange being of the value of Rs.100/- or more than Rs.100/- by virtue of section 17 of the Registration Act. The document being unregistered was, therefore, inadmissible in evidence. Once it is held that the deed through which the exchange was effected was inadmissible in evidence oral and other documentary evidence to prove the exchange would be barred by the provisions of Section 91 of the Evidence Act. So, the alleged exchange of the land in dispute could not be sustained on the basis of the oral evidence and the entries in the jamabandis and khasra girdawaris in Khushal and Ors. v. Nathu Ram and Ors., 1999(1) PLJ 17 it was held that exchange decree creates interest in the suit property for the first time requires registration.
11. It was submitted by the learned counsel for the appellants that an oral exchange could not create pre-existing right. In support of this submission, he drew my attention to Bhoop Singh v. Ram Singh Major and Ors.," A.I.R. 1996 S.C. 709 wherein it has been observed that we have to view the reach of clause (vi), which is an exception to sub-section (i), bearing all the aforesaid in mind, we would think that the exception engrafted is meant to cover that decree or order of a court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs. 100 or upwards. Any other view would find the mischief of avoidance of registration which requires payment of stamp duty, embedded in the decree of offer". In Balbir Singh and Ors. v. Surinder Kaur and Ors., 1997(1) P.L.J. 104. It was held that where new rights are created by the decree of the Court with regard to immovable property valuing more than Rs. 100/-, the decree would require compulsory registration and without registration, the decree cannot confer any rights.
12. The learned counsel for the respondent on the other hand submitted that oral exchange accompanied by delivery of possession if not brought about through registered instrument, it will not require registration. In support of this submission, he drew my attention to Hardit Singh v. Guhara Singh and Anr., 1973 P.L.J., 329 wherein it was held that the State Government for reasons best known to it, has made applicable Sections 54, 107 and 123 and not Section 118 of the Transfer of Property Act to the State of Punjab. In case, the State Government desired that the exchange of immovable property of the value of more than Rs. 100/- should be effected by a registered document, it could apply Section 118 by the same notification. It appears that the State Government did not want to apply the provisions of Transfer of Property Act regarding exchange in the State of Punjab. In the absence of the notification that Section 118 of the Transferor Property Act applies in the State of Punjab, it is not possible to hold that the exchange relating to immovable property of value of more than Rs.100/- can be effected by a registered document.
13. It was submitted by him that since the plaintiffs were themselves party to that decree, they cannot challenge that decree on the ground of lack of jurisdiction. In sup-'port of this submission, he drew my attention to Parveen Kumar v. Shiv Ram alias Sheo Ram and Ors., (2000-2)128 P.L.R. 312 wherein it was held that a party cannot challenge the consent decree itself. He could challenge that decree only on the ground of fraud or collusion or on the ground that the civil court had no inherent jurisdiction to pass the decree. He also drew my attention to Amar Singh v. Sarna, 1982 PLJ 19, wherein it was held that the provisions of Section 118 of the Transfer of Property Act are not applicable in the State of Punjab. Exchange of immovable property of the value of more than Rs.100/- can be oral only principles of Transfer of Property Act are applicable in the State of Punjab and not the technical provisions thereof.
14. In the afore-cited case, the facts of the case were that the plaintiff was owner of 57 kanals 6 marlas of land situated in village Alupur, district karnal and the defendant was owner of 8 kanals of land in the same village. They exchanged the lands mutually and mutation No. 1188 was attested on 28th September, 1982. The plaintiff challenged the exchange and pleaded that it was void and ineffective against him. He further stated that the defendant had forcibly taken possession of the land in the month of Asadh Sam-math 2023. Consequently, he filed a suit for declaration that the mutation would not effect his right for possession of land by way of consequential relief. Defendant contested the suit and controverted the allegations of the plaintiff. He, inter alia, pleaded that the exchange was proper and he was put in possession of the property by the plaintiff in view of the exchange. Some other pleas were also taken but they are not relevant for the decision of the second appeal. Learned trial Court held that the property was exchanged between the parties and that the exchange was not hit by the provisions of Transfer of Property Act. Consequently, it dismissed the suit. Plaintiff went up in appeal before the Additional District Judge, Kamal, who affirmed the judgment and decree of the trial Court and dismissed the same. He came up in second appeal to this Court. The second appeal was dismissed by this Court. This Court repelled the argument of the learned counsel for the appellant by saying that all the provisions of the Transfer of Property Act had not been made applicable to the State of Punjab. Only Sections 54, 107 and 123 of the Act have been applied to the Punjab in 1955. It is no doubt provided in Section 118 of the Act that a transfer of property in completion of an exchange can be made only in the manner provided for the transfer of such property by sale, but as the section is not made applicable in the State of Punjab, consequently the said clause cannot be said to be applicable in the State. In the absence of the notification that Section 118 of the T.P. Act applies to the State of Punjab, it is not possible to hold that the exchange relating to immovable property of the value of more than Rs.100/- can be effected by only a registered instrument. The learned Judge relied upon Sardara Singh and Anr. v. Harbhajan Singh and Ors., 1974 P.L.J. 341 where these observations were made by the Hon'ble Division Bench.
"The very scheme of the Transfer of Property Act clearly shows that the sales, mortgages, leases and exchanges of the immovable property are dealt with on totally different footings and it is futile to urge that one takes colour from the other merely because under Section 118 of the Act, an exchange can be made only in the manner provided for sale."
15. He drew my attention to Sana Ram and Anr. v. Mulakh Raj alias Lekh Raj and Anr., (1999-3)123 P.L.R. 811, wherein it was observed that in the State of Haryana oral exchange of property with delivery of possession of any value can be effected without a registered document. In Sewa Singh v. Joginder Singh and Ors., 1986 P.L.J, 113 also it was held that oral exchange relating to immovable property of the value of Rs. 100/- or more is permissible in Punjab as the provisions of Section 118 of the Transfer of Property Act regarding exchange are not applicable to the State of Punjab.
16. It was submitted by the learned counsel for the respondent that in this case the transaction of exchange had not been brought about through any writing. It was brought about only orally. If transaction of exchange is brought about orally and, on the basis of oral exchange, possession are exchanged, such an exchange would not require registration as the provisions of Section 118 of the Transfer of Property Act regarding exchange have not been made applicable to the State of Punjab. It was submitted that oral exchange accompanied by delivery of possession does not require registration in Pun-jab/Haryana.
17. Faced, with this position, learned counsel for the appellants submitted that this view was taken by this Court in 1973 P.L.J. 329, 1974 P.L.J. 341, 1982 P.L.J. 19, and 1986 PLJ 696 because in these judgments the provisions of Section 49 of the Registration Act were not noticed. Section 49 of the Registration Act lays down that no document required by Section 17 or any provisions of the Transfer of Property Act to be registered shall effect (a) any immovable property comprised therein (c) affecting such property unless it has been registered provided that any unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 to be registered may be received as evidence or a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877. It was submitted that Section 118 of the Transfer of Property Act may not be applicable to Punjab/Haryana, but the provisions of Section 49 of the Registration Act which require that no document required by Section 17 or any provision of the Transfer of Property Act to be registered shall affect any immovable property comprised therein (c) received as evidence of any transaction affecting such property unless it has been Registered cannot be lost sight of. It was submitted that in Raghunath and Ors. v. Kedar Nath. 1969(1) S.C. 497 at page 501 the Hon'ble Supreme Court has clearly held that the inclusion of the words "by the amending Act, 1929 settled a doubt entertained as to whether the documents of which the registration was compulsory under the Transfer of Property Act, but not under Section 17 of the Registration Act, were affected by Section 49 of the Registration Act, Section 4 of the Transfer of Property Act enacts that Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 1908.
18. It was submitted that there is no difference between exchange and sale. Except that, in sale, title is transferred from the vendor to the vendee in consideration for price paid or promised to be paid. In exchange, the property of 'X' is exchanged by "A" with property "Y" belonging to "B". In this manner, the property is received in exchange of property. There is transfer of ownership of one property for the ownership of the other. It was submitted that prior to when decree dated 20.10.1992 was not passed, there was no title of "A" in property "Y" and there was no title of "B" in property "X". It was submitted that for the first time, the right was created in immovable property by decree and, therefore, that decree required registration. It was submitted that if there was no pre-existing right in the property worth more than Rs. 100A and the right was created in the immovable property for the first time by virtue of decree, that decree would require registration. In my opinion, oral exchange was not permissible in view of the amendment of Section 49 of the Registration Act brought about by Act No. 21 of 1929, which by inserting in Section 49 of the Registration Act the words "or by any provision of the Transfer of Property Act, 1882" has made it clear that the documents of which registration is necessary under the Transfer of Property Act but not under the Registration Act falls within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction affecting any immovable property comprised therein, and do not affect any such immovable property. Transaction by exchange which required to be affected through registered instrument if it was to affect any immovable property worth Rs. 100 or more,
19. Learned counsel for the respondent submitted that the parties had exchanged possessions through exchange long ago and it was only in Civil Suit No. 959 of 1992 when the exchange was recognised. It was submitted that after such a long lapse of time, parties should not be displaced. It will be difficult to put them in the same position in which they were prior to when this transaction of exchange had not taken place. Be that as it may, when there was no valid exchange, the transaction of exchange has to fall and it has to be set aside.
20. In view of what has been said above, this appeal has to be allowed, It is accordingly allowed and judgment and decree dated 16th April, 1999 passed by the Additional District Judge, Panipat affirming that the Civil Judge (Junior Division) Panipat dated 17th September, 1997 is set aside and the suit of the plaintiffs is decreed, as prayed. No order as to costs.